Thirumaleshwara Bhatta being minor by next friend Shanker Bhatta vs Kashmutt Ganapayya and Others

Ramaswami, J.—S. A. Nos. 1823 and 2212 of 1947: --

These are two connected appeals preferred against the decree and judgment of the learned District Judge of South Kanara in A.S. No. 216 of

1945 arising from O. S. No. 76 of 1943 on the file of the Subordinate Judge''s Court, South Kanara.

The facts of this case can be easily followed if we take on hand the genealogical tree appended below:

PUTTAYYA alias SHANKERNARAYANA BHATTA

|

_________________|___________________

| |

Thimmanna Bhatta (Sankamma) Shambayya

(Deft. 3) |

| _______|________

| | |

| Ganapayya Ramappayya

| (plff.) (Deft. 2)

_______|__________

| |

Shankernarayana Shyama

Bhatta (Laxmi)

|

____|___________

| |

Thimmanna Bhatta Shankari

The information given by this genealogical tree has to be completed by bearing in mind the following facts: Shankernarayana Bhatta died in 1927

and his widow Laxmi died in 1941. Shankernarayana Bhatta''s son Thimmanna Bhatta had died unmarried during his father''s lifetime and his

daughter Shankari who was the first wife of the first defendant Shanker Bhatta died on 9-8-1943. Sankamma, the paternal grandmother of

Shankari died after the disposal of the first appeal on 20th May 1949.

It is unnecessary to re-set the multifarious controversies between the parties set out in the judgments of the lower courts because the contest has

resolved itself now into a single question of fact and law regarding the two adoptions which are said to have been made in the case of the appellant

in S. A. No. 1823 of 1947, namely, Tirumaleshwara Bhatta, minor by next friend Shanker Bhatta.

The controversy before us is simple, namely, if either the alleged adoption of Tirumaleshwara Bhatta in the first instance on 12-7-1943 is

believed or the second adoption dated 29-10-1944 is accepted as having been validly made with the adoptive mother as the then deceased

Shankari, then this Tirumaleshwara Bhatta would be entitled to succeed and his opponents, the next reversioners of the deceased Shankernarayana

Bhatta or the now deceased Sankamma, would not be entitled to succeed to the considerable landed properties situated in four villages and which

are the root cause of all this trouble between the parties.

There is no dispute before us that the next reversioners, namely, the plaintiff in the suit O. S. No. 76 of 1943 and the second defendant therein

would be entitled to take all these properties on the death of Shankari and Sankamma but for the intervention which is set up by the husband of

that Shankari, namely, that Tirumaleshwara Bhatta had been adopted by him (Shanker Bhatta) while his wife Shankari was alive, namely, on 12th

July 1943, because Shankari died on 9th August 1943.

In regard to this alleged adoption of Tirumaleshwara Bhatta on 12th July 1943, if it is believed as a fact no further point of law is involved

because he would have been adopted to this Shanker Bhatta with Shankari as the adoptive mother. On the evidence, however, it has been found

by both the courts below that this adoption set up as having taken place on 12th July 1943 is false. In these second appeals the learned advocate

for Tirumaleshwara Bhatta once more pressed this point. He has not been able to convince us that the conclusion of the lower courts is incorrect.

On the other hand, the lower courts have come to this conclusion on ample and satisfactory evidence which may be briefly recapitulated as

follows. This Shanker Bhatta, the alleged adopted father, sought to prove this adoption on 12th July 1943 by means of oral, documentary and

circumstantial evidence. (His Lordship recapitulated the evidence and concluded:)

9-13. Therefore, the first adoption set up, as having taken place on 12th July 1943 during the lifetime of Shankeri, is false.

This Shanker Bhatta sets up a second adoption of the same boy on 29th October 1944 and wanted to nominate or designate the deceased

Shankeri as the boy''s adoptive mother, though by this time this Shanker Bhatta had married and his second wife was living and apparently could

have been present even at the time of this adoption. In regard to this adoption two questions arise, namely, did such an adoption take place and

secondly, could this Shanker Bhatta nominate or designate his deceased wife Shankeri as the adoptive mother in preference to his living wife?

Both the lower courts have found that an adoption took place on 29th October 10-14 as alleged and that this is made out by the oral evidence

of D. Ws. 4 to 8 and by the printed invitation cards Exs. D. 3 and D. 8a and the adoption deed Ex. D. 5. Therefore, the learned Subordinate

Judge found as follows :

I find that the adoption of the 6th defendant on 29th October 1944 has been satisfactorily proved.

In appeal the learned District Judge has observed:

The learned Subordinate Judge has upon the evidence held that there was an adoption on 29th October 1944, and I concur with him that as a

matter of fact this adoption did take place.

Therefore, as a fact this adoption of 1944 can be taken as having been established and it was not challenged before us.

On a point of law, however; the learned Subordinate Judge held that this adoption was invalid en two grounds. Firstly, that it was a ''Sagotra''

adoption and that as the mother of the adopted boy in her maiden state could not have lawfully married the adoptive father, the adoption was

invalid, and secondly, that this adoption cannot serve to divest the estate, which on the death of Shankeri had already become vested in other

persons (be it the next reversioners of Sankamma). The learned District Judge rightly declined to uphold both these contentions. Firstly, in so far as

Saghotra point was concerned, it was found as a fact that the ''Sagotram, namely, Gouthama ''Gothram'', was not proved and secondly, it has been

held in -- Sri Chintalapati Simhadri Raju and Another Vs. Akella Satyanarayana Pantulu and Another, , that custom sanctions the practice of

''Sagothra'' adoption.

It was laid down that the prohibition contained in the rule of the texts that there can be no valid adoption unless a legal marriage is possible

between the person for whom the adoption is made and the mother of the boy who is adopted, in her maiden state, is overridden by custom in the

Madras Presidency. Secondly, the learned District Judge held, and we agree with him, that if the adoption is valid it can divest the estate which had

already become vested in other persons on the death of the previous owner. The case to our mind in point is a Bench decision, by which we are

bound unless we are prepared to refer the matter to a Full Bench which is not necessary in the circumstances of this ease viz., in --''Subramanian v.

Muthiah Chettair'', 1946 M W N 447.

It is laid down in this decision that an adopted son of a Hindu, whose only wife had died before the adoption, becomes the son of that deceased

wife, so as to inherit the properties that belonged to her and that the adoption would take effect as if the adoption had been made in the life time of

the wife herself and, in the absence of any special custom, the adopted son will be entitled to divest all intermediate estates which had vested

before his adoption subsequent to the death of the adoptive mother, either by inheritance or by the application of the custom of reverter. Therefore,

if the adoption of the 6th defendant was a valid adoption in the sense that the 6th defendant would become the adopted son of the deceased

Shankeri, it will, without the slightest doubt, serve to divest the estate which had become vested in the heirs of the last maleholder, be it limited as in

the case of Sankamma or absolute as in the case of the reversionors.

The question however is whether the adoption on 29th October 1944 was an adoption in the sense that the sixth defendant would become the

adopted son of the deceased Shankeri in spite of the fact that the adoptive father, the first defendant, had re-married before the adoption took

place and had a living wife on the date of adoption. For, there can be no dispute that if the adoptive mother cannot be held to be Shankeri, the

adopted boy cannot succeed to the estate of Shankeri''s father and vice versa.

The learned District Judge came to the conclusion that the adoptive father had no right to name a non-existent wife as the mother of the

adopted boy in preference to the one that was in existence and that therefore, though the adoption was valid it cannot be held that the adoptive

mother was Shankeri. The resultant consequence was that the adopted son could not succeed to the estate of Shanker''s father.

This conclusion is attacked by the learned advocate for Tirumaleshwara Bhatta, Mr. Bhashyam and his case is that on the case law

developments that have taken place in regard to the theory of adoption, which is of a fictitious nature, the right to name a non-existent deceased

wife in preference to the existing living wife is the logical extension. This is buttressed up by the following two lines of citations.

FIRST LINE: The case law has gone to the extent of holding that a bachelor can adopt: -- ''Gopal Anant v. Narayan Ganesh'', 12 Bom 329;

that a widower can adopt: --''Nagappa Udapa v. Subba Sastry'', 2 MHCR 367; -- ''Chandrasekharudu v. Brahmanna'', 4 Mad HCR 270; --

''Sundaramma v. Venkatasubbier'', 49 Mad 941 and -- ''Sowntharapandian v. Periaveeru Thevah'', 56 Mad 759 F.B.; that a man with a plurality

of wives can adopt even in opposition to his wife''s wishes and foist an adopted son on one or more of them: -- ''Annapurni Nachiar v. Collector of

Tinnelvelly'', 18 Mad 277; -- ''Aniiapurni Nachiar v. Forbes'', 23 Mad 1; -- ''Sundaramma v. Venkatasubba Aiyar'', 49 Mad 941 and --

''Sowntharapandian v. Periaveeru Thevan'', 56 Mad. 759.; that a wife has no place in the ceremonies connected therewith though ultimately she

will participate in the spiritual welfare assured to the husband by ''Tilothaka'' and ''Pinda'' offered by the adopted boy after her demise. The

adoption is to the husband and not to the wife but in consequence of the superiority of the husband, by his mere act of adoption, the filiation of the

adopted as the son of the wife, is complete in the same manner as her property in any other thing accepted by the husband: Vide Dat. Mima I, 22

cited on page 244 of Mayne on Hindu Law and Usage, 11th Edn. The principle deduced from these citations is that the adoption by the husband is

to himself and he could filiate as he likes that son to his wife and make that son succeed to her properties.

SECOND LINE: Having deduced these absolute powers of the husband to flliate or foist a son on his barren wife, the case law has gone to

the extent in the second line of decisions of his being able to nominate or designate the adoptive mother for that boy. It he was a monogamist and

the wife had died at the time of adoption, the deceased wife would be construed to be the adoptive mother on the principle that a boy cut off from

his natural family should be found a mother whenever possible -- ''Sundaramma v. Venkatasubba Aiyar'', 49 Mad 041. If the adoptive father has

two or more wives, that person whom he associates in the function will be the adoptive mother: -- ''Annapurni Nachiar v. Collector of Tinnelvelly'',

18 Mad 277;--''Annapurni Nachiar v. Forbes'', 23 Mad 1.

If the mah intending to adopt has two or more wives and dies giving a joint power to his widows to adopt and they adopt a boy the seniormost

would, as the ''Dharmapatni'' and on the principle that the adopted boy could not have more than one mother which is opposed to nature, be the

adoptive mother in the event of an adoption: -- ''Tirumangalaratnam v. Butchayya'', 52 Mad 373. If the authority has been given to the widows

severally, the junior may adopt without the consent of the senior, if the latter refuses to adopt: -- ''Mondakini Dasi v. Adinath'', 18 Cal 69. Where

there are several widows, if a special authority has been given to one of them to adopt, she, of course, can act upon it without the assent of the

others, and she alone could act upon it; Vide ''2 Stra. H. L. 91'' cited at page 205 of Mayne on Hindu Law and Usage, 11th Edn. These

permutations and combinations establish the right of the husband to designate or nominate the wife who should be the adoptive mother of the boy

adopted.

The learned advocate Mr. Bashyam concedes that no decision has gone to the extent of saying that the husband who is adopting a son to

himself has got the power to nominate or designate a dead wife as the adoptive mother of the boy in reference to a living wife existing and present

at the time of the adoption (obviously for the purpose of altering the natural line of devolution of property and consolidating it in his own family) but

that this designation is nothing more than a logical extension of the powers of nomination of the husband set out in the second line of decisions. In

other words, the substance of Mr. Bashyam''s arguments is that when the law has been swallowing a camel why should it strain at a gnat of this

description?

We regret our inability to accept the contention of the learned advocate Mr. Bashyam on account of the following considerations.

First of all, the correctness of -- ''Sowntharapandian v. Periaveeru Thevan'', 56 Mad 759 has come to be doubted by very eminent jurists and

in fact was the subject matter of a reference to a Full Bench in --''A. S. No. 83 of 1947'' by Govinda Menon and Basheer Ahmed Sayeed JJ. This

matter, however, could not be disposed of by a Full Bench because the parties compromised and the hearing of this matter became otiose. The

order of reference contains the following: ""In Mayne''s Hindu law, tenth edition, pages 258 and 259 the learned editor discusses the question

regarding the adoption by a widower as well as which wife happens to be the adoptive mother. At page 258 the learned editor observes as

follows:

The real difficulty however lies elsewhere: Where a person has no wife in existence at the date of adoption, can his deceased wife be said to be

the adoptive mother? This question requires much more consideration than it has received. Where an adoption is made by a widow, it relates back

to her husband''s death; but where the adoption is made by a widower, there is no reason or principle why it should date back to an earlier date

such as the death of his wife. The Dattaka Mimamsa contemplates a living wife and not one who is dead. It is imposing a fiction upon a fiction to

say, either that the wife must be deemed to be alive at the date of the adoption, or that the adoption should relate back to the moment of her death.

For the legal fiction of maternity, there must be a wife in existence at the time of the adoption to whom the law can point as the mother.

For the adoption is to the husband, and not to her. But in consequence of the superiority of the husband, by his mere act of adoption, the filiation of

the adopted as son of the wife, is complete in the same manner as her property, in any other thing accepted by the husband"". This passage is

conclusive to show that the acquirer of the property in the son must be a living person. So too, if a bachelor makes an adoption as he is entitled to

do, the fiction of maternity has no scope and it is impossible to constitute the wife he may marry thereafter, as the legal mother of the adopted boy.

She might not have even been in existence at the date of adoption. The simpler and more logical conclusion appears to be that a person can be the

mother of the adopted boy when she is in existence as a wife at the date of the adoption, whether or not, she consents to it.

The editor remarks in the foot-note, ""Ramesam J.''s dictum in -- ''Sowndarapandian v. Periaveem Thevan'', 56 Mad 759. ""Nor is there any

need to rely on any theory of the adoption relating back to Kothai Animal''s lifetime ""proceeds upon a misconception.

Another equally eminent authority has also criticised the correctness of the decision in --- ''Sowntharapandian v. Peeriaveeru Thevan'', 56 Mad

Sir M. Venkatasubba Rao, after his retirement from the High Court of Madras, in reviewing Mayne''s Hindu law, 10th Edn., observed as

follows:

By way of refreshing contrast, the criticism of the Full Bench decision in -- ''Sowntharapandian V. Periaveeru Thevan'', 5G Mad 759 is liberal in

outlook. That the adopted son of a widower becomes the son of his deceased wife is a rule that outrages both reason and natural feeling. To

suppose that the deceased wife is alive, or to relate back the adoption to the moment of her death, as the editor rightly points out, is to impose a

fiction upon a fiction. The absurdity of invoking the fiction of maternity in the case of a bachelor who first adopts and then marries is patent.

We cannot, as was the case also with our learned brethren Govinda Menon and Basheer Ahmed Sayeed JJ., ignore that circumstance that two

eminent jurists late Mr. S. Srinivasa Aiyangar and Sir M. Venkatasubba Rao were of the opinion that -- ''Sowntharapandian v. Periaveeru

Thevan'', 56 Mad 759 (FB) had not been correctly decided. We would have referred this matter to a Full Bench but for the circumstance''s that on

the footing that -- ''Sowndarapandian v. Periaveeru Thevan'', 56 Mad 759 has been correctly decided the extension which the learned advocate

Mr. Bashyam asks for is not deducible from the ''ratio decidendi'' in that case.

In fact -- ''Sownthrapandian v. Periaveeru Thevan'', 56 Mad 759 following the earlier decision of -- ''Sundaramma v. Venkatasubbier'', 49

Mad 941 which for the purpose of our argument can be considered to constitute one group, contained observations showing the need for caution

in imposing fiction upon fiction in developing the fictitious theory of adoption. It is a salutary principle right through that the adopted son is after all a

son by fiction only. To adopt the words of Lord Truro in -- ''Egerton v. Brownlow'', (1853) 4 H. L. C. 1, uttered in another context, the fiction of

adoption constitutes ""a very unruly horse and when once you get astride of it you never know where it will carry you."" The caution enjoined in --

V.K.R.N.S.M. Subramanian Chettiar Vs. V.K.R.N.P.S.S.M. Somasundaram Chettiar, that ""even a fiction cannot be carried to illogical limits""'' is

too wholesome to be ignored.

And in this connection it has to be remembered and borne in mind that the text writers should not be taken literally and verbally because those text

writers, for instance like Dattaka Mimamsa where it is stated about the wife of the adopter becoming the mother of the adopted boy independently

of her volition, were only thinking of matters spiritual and in. terms of perpetuation of the sacred fire (agnihotra), ''Shradha'' etc. Otherwise, if we

do not keep in mind this limitation there would be a complete perversion of the laws of inheritance. In a series of cases it has now been held by our

court thai more than one wife of the adopter cannot become the mother of the boy for the purpose of succession. Under the Shastras the theory of

maternity arising in the case of all the wives of a person is based upon the spiritual aspect.

In fact Jagannatha has gone to the extent of remarking that if a son be adopted by a man married to two wives, he would have two maternal

grandmothers and two sets of maternal ancestor; see Colebrooke''s Hindu Law, 4th Edn. Vol. II, page 394. Similarly, Vyavasthachandrika states

that if an adopted son is received by none of the wives either in conjunction with or under the authority of the husband but by the husband alone,

the adopted son should perform the ''Parvana Sradha'' in honour of the ancestors of all such wives of the adopter: See Vol. II, page 147, verse 32.

Therefore, unless we bear in mind the limitation, we would be creating confusion in regard to succession. So also if we literally accept these texts

as not only covering matters spiritual but also matters secular, we would be making a mockery of adoption not by making it a substitute for the real

thing, namely, the adopted son being the reflection of a real son, but a caricature of the same.

An ''aurasa'' son if his father is married to two or more wives can only succeed to his own natural mother''s properties and not be the heir of his

step-mothers'' properties devolving on them from their parents. Therefore when Mr. Bashyam asked for an additional fiction we must boar in mind

these limitations and examine whether such an extension is based upon the two factors involved in an adoption, namely, the spiritual and the

material one. But before examining this aspect of the case we shall draw attention to certain observations in -- ''Sundaramma v. Venkatasubbier'',

49 Mad 941 and -- ''Sowndarapandian v. Periaveeru Thevan'', 56 Mad 759) which throw considerable light on the question to be considered. In

--''Sundaramma v. Venkatasubbier'', 49 Mad 941, Phillips J. observed:

The theory then appears to be that the adopted boy by a legal fiction becomes the natural son of the adoptive father and presumably also of his

wife. The question here is not complicated by the existence of two or more wives.

In -- ''Sowndarapandian v. Periaveeru Thevan'', 56 Mad 759 FB, Ananthakrishna Aiyar J. observed:

In the case of plurality of wives, several tests have been indicated to find out the intention of the husband as to which of the wives should be the

mother of the adopted son. In the absence of any indication by the husband himself just as, associating one wife with him in the act of adoption, or

otherwise declaring who is to be the mother, it may be that the seniormost wife -- ''Dharmapatni'' --might bo held to be the mother. If some wives

be dead but others living other circumstances might have to be considered.

In other words, these two decisions contain cautions against extending the fiction and take on an additional fiction as now called for by Mr.

Bashyam.

28a. The ''ratio decidendi'' in both these cases is that the adopted boy gets entirely cut off from his natural family, though we may not go to the

extent of considering whether he is civilly dead and concerning which there has been a lot of controversy. Therefore, courts have felt that wherever

possible a mother should be found for the boy in ''Suddha Dattaka'' affiliation. That mother was described as ""Pratigrahitri Yamatha"" and this term

has in its turn led to a lot of controversy and our court has considered the definition of this term in -- ''Sowndarapandian v. Periaveeru Thevan'', 50

Mad 759 and Justice Ananthakrishna Aiyar has held that the expression means only the adoptive mother and not the woman who actually received

the boy.

In the article ""Theories of Maternal affiliation in adoption"" contained at p. 21 of 1948-2 Mad L J Journal portion the learned author Mr. S.

Venkataraman points out that it is noteworthy that the term has always been understood by scholars as referring to an adoptive mother generally

and not carrying its etimological significance. This construction was evolved because as I have stated the endeavour of the courts has always been

whenever possible to find a mother for the boy and on that construction it was possible to deduce that where a widower adopts, the deceased wife

could by fiction be made the adoptive mother of the son adopted so as to inherit her father''s properties.

Could this be done in the case of an adoptive father who has remarried before adoption and has a wife living and who has no necessity to

haunt for a mother for the adopted boy because there is one ready to hand. In our opinion there can be only one answer and it is the answer which

has been given by the learned District Judge, namely, that the deceased wife of the first defendant cannot be nominated or designated as the

adoptive mother of the sixth defendant.

This is based upon a two fold reasoning. First of all the various fictions in regard to the power of a husband to designate or nominate a

deceased wife or in the case of a bachelor a subsequently acquired wife to be the adoptive mother is based on the principle that the adoptive boy

having lost his natural mother must be found a mother wherever possible and this is not the case here. Secondly, powers of preference of the

husband can apply only as between the living wives of a person and not for elucidating the rights of a wife who had died prior to the adoption and

a wife who is living at the time of adoption. The recognition of such a nomination would not give effect to the rule that when the first wife dies the

next wife becomes the ''Dharmapatni'' and in fact a wife has to be taken in order that acts of religion might be done properly.

So, the importation of the fiction will result in the anomaly, namely, that with reference to the adopter and his then existing wife the son is fictionally

born in his family on the date of the actual adoption but with reference to the deceased wife he should be deemed to have come into existence on

the date of her death, a different date; so much so the son comes into existence not at the same time as regards both the parents, namely, Shanker

Bhatta and Shankeri but at one time with reference to Shanker Bhatta and his second wife and at another time with reference to the alleged

adoptive mother Shankeri. Adoption ceases to be an imitation of nature but becomes a mockery of it.

It is interesting in this connection to look into the Hindu Code, 1948, which has not been passed into law but is on the legislative anvil. It is

printed as Appendix IV to Mayne on Hindu Law and Usage, 11th Edn. In Section 54 of the said Code it is stated that any male Hindu who is of

sound mind and has completed the age of eighteen years has the capacity to take a son in adoption but cannot do so except with the consent of his

wife or, if he has more than one wife, except with the consent of at least one of such wives. In Section 70 of the said Code it is stated that ""where a

Hindu who has a wife living adopts a son, she shall be deemed to be the adoptive mother"" and

where a Hindu has more than one wife living, that wife in association with whom or with whose consent he makes the adoption, or if more than

one wife has been so associated or has so consented, the seniormost in marriage among the wives so associated or consenting shall be deemed to

be the adoptive mother, and the other wives the step-mothers, of the adopted son. Where a widower adopts at any time after his wife''s death, the

wife who died last immediately preceding the adoption, shall be deemed to be the adoptive mother, and any other predeceased wife or any wife

subsequently married by him shall be deemed to be the step mother of the adopted son. Where a bachelor adopts, any wife subsequently married

by him shall be deemed to be step-mother of the adopted son.

There can be no dispute that these sections are the embodiment of the case-law as it now stands and the progress which is sought to be embodied.

It will be noticed that the framers of the Code have not thought fit to apply the extension now sought for as it is opposed to both the spirit and of

the texts as well as the limitations placed by case-law in regard to this thorny subject of adoption by the male.

In the result, it follows that the decree and judgment of the lower appellate court has got to be set aside because Sankamma has subsequently

died and there is no impediment to the reversioners'' claim and the decree and judgment of the learned Subordinate Judge has got to be affirmed,

though on different grounds. The second appeal by Tirumaleshwara Bhatta (S. A. No. 1823 of 1947) is dismissed and the second appeal by the

reversioners (S. A. No. 2112 of 1947) is allowed.

The reason which induced the learned District Judge to dismiss the action was that it was too premature as Sankamma was alive at the date of

the suit and the date of first appeal. Subsequent to the filing of the appeal here the impediment has been removed by the death of Sankamma.

Therefore it follows that the plaintiffs are entitled to a decree in terms of the learned Subordinate Judge''s findings, but as regards mesne profits we

direct that the plaintiffs be entitled to a decree only from the date of the death of Sankamma, that is, 20th May 1949. Each party to bear its own

costs throughout.